Privacy Protection in Public Spaces under the Constitution of Japan

<p>As privacy protection under the Constitution of Japan is often equated with ensuring rights to control personal information irrespective of its available spaces, the relationship between privacy and physical spaces has almost been discarded in Japan’s legal arguments. Indeed, Japanese case laws had largely been negative in privacy protection in public places despite the fact that the public observation doctrine and the public forum theory developed in the United States have not taken root in Japanese constitutional law. However, a recent case law over GPS investigation has highlighted the relationship by establishing the “rights not to be intruded into private spheres” based on Article 35 of the Constitution, along with the distinction between “public roads” and “places and spaces where individual privacy is strongly protected.” The substance of privacy stems from multiple elements including private spaces themselves, a state of calm in private lives, and private information that might unveil a considerable portion of private activities. Since the latter two elements are generally applicable regardless of places, privacy can be protected not only in private but also in public spaces. Thus, the object of protection includes not only spaces themselves but also “private spheres” that are developed in such spaces or closely tied to them. These spheres cover both public and private spaces as well as some spiritual and conceptual areas that are free from interventions in the state of calm in private lives as well as an extensive acquisition and usage of private information by public authorities. It implies that ensuring non-intrusion into such private spheres is a core of constitutional privacy protection. Therefore, considering privacy only from the perspective of physical spaces inevitably has some limitations. Given these factors, it would be fair to mention that the “rights not to be intruded into private spheres” have shed light on the importance of protection of such spheres, through which the possibilities of privacy protection in public spaces and the importance of safeguarding private information have been clarified.</p>